Protection of Dalits: A Constitutional Evolution


[This article is authored by Ishan Fouzdar, CHRIST (Deemed to be University), Bengaluru]

In late October 2018, a 14-year-old Dalit girl [1] was beheaded by an upper-caste man whose wife said he hated the girl specifically because of her caste. The forefathers and foremothers of our Constitution envisaged an India which will fight against caste and with that vision laid down Article 15 and 17. Today, India scores a whopping 7.2+ score in the Social Hostility Index [2]  conducted by the Pew Research Centre bagging a place in the "Very High Hostile" league. Interestingly much of the hostility is directed against low-caste Dalits, according to the U.S. State Department. Additionally, the India Human Development Survey [3] data for 2011-12 shows that over 27% of Indians admit to practicing untouchability, despite the practice being illegal. 
As MacIver wrote, “In the great book of law the state merely writes new sentences and here and there scratches out old an old one. Much of the book was never written by the state at all.” Indian customary law is a good example of this. The origins of caste lie under grey lines of RigVeda and Manusmriti (The Law of Manu) and several inconsistencies have been found regarding the origins of caste. If one ducks the question of the origin and comes to the systematization of caste, Manusmriti is held responsible. It's also interesting to note that Manusmriti made up a good part of Hindu Personal Law before Jawaharlal Nehru and BR Ambedkar pushed in the Hindu Code Bills. Chapter 8, verse 413 of Manusmriti says, "But a Sudra, whether bought or unbought, he may compel to do servile work; for he was created by the Self-existent (Svayambhu) to be the slave of a Brahmana." Chapter 8 of Manusmriti lays down clear instructions as to how the Sudras(lowest caste) should be treated. 
The debate of whether the draconian and inhumane Laws of Manu should have adhered was put to end by our Constituent Assembly but a tradition, normalized for over than tens of thousands of years cannot be done away with just by putting down a couple of articles. As Mark Twain said, "The less there is to justify a traditional custom, the harder it is to get rid of it”, the law had to fight and evolve continuously in order to get rid of caste. 

Interpretation: The Evolution of Law 
It’s important to understand that an article of the Constitution has much more to offer than what it says prima facie. The courts are responsible for interpreting the articles written in the Constitution and during this course of interpretation, the ambit of an article is exposed and even at times, extended. Having said that, Article 17 of the Constitution deems untouchability in any form is illegal. Article 17 was first interpreted by the Supreme Court in the State of Karnataka v. Appa Balu Ingale [4],  as per K Ramaswamy j, “Neither the Constitution nor the Act defined `Untouchability'. The reasons are obvious. It is not capable of precise definition. It encompasses acts/practices committed against Dalits in diverse forms. Mahatma Gandhiji in his `My Philosophy of Life' edited by A.T. Hingorani 1961 Edn. at p. 146, stated that "untouchability means pollution by the touch of certain persons by reason of their birth in a particular state of the family. It is a phenomenon peculiar to Hinduism and has got no warrant for reasons or sastras".  Thus, expanding the ambit of the word “Untouchability” indefinitely. The Supreme Court of India in People's Union for Democratic Rights v. Union of India [5] held that Article 17 can be held against private individuals also and that is it the constitutional duty of the state, to ensure that this fundamental right is not violated. In Janki Parsad and Others v. State of J&K [6], Supreme Court held, "Where a person is refused admission in a temple on the ground of his being a Harijan, the refusal is to be presumed to be on the ground of untouchability." Hence, one can see the evolution of Article 17 vis-á-vis the word Untouchability as it underwent interpretation on different occasions by the apex court. 
Indirectly, Article 17 was also linked to the Basic Structure of the Constitution in The State Of Karnataka v. Appu Balu Ingale. In Kesavananda Bharati v. The State of Kerela [9], SC held that The Preamble is a part of the Constitution and it can be amended under Article 368; however the basic elements of the Constitution enshrined in the Preamble cannot be amended or infringed. In The State of Karnataka v. Appu Balu Ingale case, the court pronounced, “The Preamble of the Indian Constitution imbued among its people with pride of being its citizens in an integrated Bharat with fraternity, the dignity of person and equality of status. But Casteism, sectional and religious diversities, and parochialism are disintegrating the people.[...] Adaptation of new ethos and environment are, therefore, imperatives to transform the diffracted society into a high degree of nobility for establishing an egalitarian social order in secular, socialist, Democratic Bharat Republic, "Untouchability" of the Dalits stands an impediment for its transition and its bane and blot on civilized society.” Hence, when the court held that “Untouchability of the Dalits stand as an impediment” to the virtues of the Preamble, one can virtually see the lines joining The Basic Structure and Article 17 via the Preamble. 
Article 14 of the Indian Constitution, which guarantees Equality Before Law has an absurd number of case laws. The SC proclaimed in E.P. Royappa v. State of T.N. [7], (1974) “Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed cabined and confined” within traditional and doctrinaire limits.” Also, according to the decision of SC in the Indra Sawhney v. The Union Of India [8], Article 14 with its dynamic facets of equality takes under its umbrella Articles 15-18 of the Constitution, hence taking Article 17 under it as well. More importantly, in the Indira Nehru Gandhi v. Shri Raj Narain & Anr [10] the SC very famous stated that Rule of Law contained in Article 14 is a part of the Basic Structure of the Constitution. Similarly, in Nachane Ashiwni Shivram And Ors. ... v. State Of Maharashtra & Anr. Etc. the doctrine of equality vis-á-vis Art. 14 was recognized as the basic feature of the Constitution. Hence, as a gradual development, the abolition of Untouchability in article 17 became a part of the Basic Structure of the Constitution, directly and indirectly, making it virtually impossible to infringe. 
Many other constitutional safeguards evolved during the course of time for the protection of the Dalit community including Article 15, 16, and 39-A. But these were safeguards for securing the growth of this downtrodden community and hence ipso facto lie outside the scope of this article. 
Additional to the constitution developments, two acts, namely, Protection of Civil Rights Act, 1995, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 were passed to better the process of dealing with cases of atrocities against Untouchables. 

Conclusion 
Law has many sources, for example, Custom, Religion, Adjudication, etc. But in modern progressive democracies such as India laws are made by popularly elected representatives and thus ipso facto reflect the will of the people. As Duguit said, “Laws are not obeyed because there is someone to enforce them, but because they are the conditions of social living”, laws are not merely commanded but a reflection of the society. Hence, as society evolved, the law has to evolve too, or else it will be banished. Following the same principle, the Indian Constitution law has evolved according to the needs of the society and especially the downtrodden. The various interpretation of the Articles enshrined in the Constitution has widened the scope of helping and safeguard a tribe which was oppressed for centuries. But, while the law had grown to protect the downtrodden, we as citizens and part of the society need to question our sociological as well as political grounds of morality. 

References:
[1] S. Senthalir, In Tamil Nadu, the beheading of a 14-year-old is suspected to be a caste crime, Available here
[2] Pew Research Centre, Social Hostilities Index (SHI), Available here.
[3] Amit Thorat, et al., The Continuing Practice of Untouchability in India: Patterns and Mitigating influences, Indian Human Development Survey. Available here.
[4] State Of Karnataka v. Appa Balu Ingale And Others, AIR 1993 SC 1126.
[5] People's Union For Democratic ... v. Union Of India & Others, 1983 SCR (1) 456.
[6] Janki Prasad Parimoo & Ors. Etc. v. State Of Jammu & Kashmir & Ors, 1973 SCR (3) 236.
[7] E. P. Royappa vs State Of Tamil Nadu & Anr, 1974 AIR 555.
[8] Indra Sawhney Etc. Etc v. Union Of India And Others, Etc., 1992 AIR 1993 SC 477.
[9] Kesavananda Bharati ... v. State Of Kerala And Anr, AIR 1973 SC 146.
[10] Indira Nehru Gandhi v. Shri Raj Narain & Anr, AIR 1975 SC 2299.

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